A parallele or conference of the ciuill law, the canon law, and the common law of this realme of England VVherein the agreement and disagreement of these three lawes, and the causes and reasons of the said agreement and disagreement, are opened and discussed. Digested in sundry dialogues by William Fulbecke. At the end of these dialogues is annexed a table of the sections ...

The twelfth Dialogue of vn∣lawfull assemblies, riots, routes, and forcible entries. (Book 12)

NOmomath.

Tell me Codicgnostes what* 1.1 doe you take to be publique force in your Lawe?

Codignostes.

When an vnlawfull

assembly is mette together in the highe streete,* 1.2 or in the open sight of men to offer abuse, hurte, or iniurie to a mans person, or to take away his goods from him by violence and strength of hand a 1.3.

Anglonomophylax.

That likewise is publique* 1.4 force by our law: of priuate force done to a mās person wee haue spoken before, which if it be publickly done, it turneth to be publicke force, but as to the taking away of goods by open force, if a man doe disseisie an other, and when hee hath entred▪ hee doth carie away the chat∣tels of the disseisie, this is in our Lawe a dis∣seisin* 1.5 with force and armes, and the disseisor shall be punished by imprisonment b 1.6, and a man disselsed an other but not with force at his first entre, and it was found by assise that incontinent after his first entre he cut downe trees, and this was awarded a disseisin with force and armes c 1.7.

Nomomath.

What punishment haue they by your lawes which commit such force?

Codicgn.

The punishment of this fault in our* 1.8 law is diuersified by the qualitie of the persons that commit it: for otherwise bondmen, other∣wise they that are free, are punished: and if it be mixed with an other fault, it was punished in a free man by ancient Lawes, with perpetuall ban∣nishment, & the confiscatiō of goods d 1.9, but now it is punished with bannishment for a certaine time without confiscation of goods e 1.10, but it is to be noted that the said punishment onely taketh place, when force is actually done or cōmitted,

but if nothing bee done forcibly, but certaine men hauing weapons are assembled in a great multitude together to committe force, the pu∣nishment of that offence is arbitrarie and leste to the discretion of the Iudge, but the Lawe set∣teth downe this mulcte in certaine, that if he be a man of woorth hee shall paie to the common treasurie an hundred pounds in gold, whosoeuer in such sort offendeth f 1.11.

Anglonomoph.

By our Lawe if a disseisin bee* 1.12 found to bee done by diuerse men, and to bee done by force, and one of them is found to bee but a coūsailor of the disseisin, yet euery of them shall be awarded to prison g 1.13, and if a man be attainted of Trespasse at the suite of the partie, or of a disseisin with force, wherefore hee is commaunded to prison, if he be present, or that hee shall be attached, if he be absent, where∣upon hee is attached and put in prison at the Kinges suite, vntill hee haue payed a fine to the King, and after hee findeth pledges for his fine, and prayeth that hee may be at large, he shall not be permitted to goe at large, vntill the Court be sufficiently enformed that hee hath agreed with the partie, if the plaintife doe require be∣fore that his bodie may continue in prison, vn∣till the defendant haue agreed with him h 1.14. An vnlawfull assemblie is where aboue the num∣ber of two doe assemble to doe some vnlaw∣full* 1.15 acte, and they doe it not in facte, but af∣ter their saide assemblie they departe without doing more, and a route is their tumultuous

proceeding to performe the acte purposed: but a* 1.16 riot is when more thē two do assemble together to the intent to do an vnlawfull act, as to beate or to maime an other, and they do this in fact: but if diuerse assemble, & none know to what intēt, this is not punishable till the intēt be knowne i 1.17, and when men are indited of riot, they cōmonly pray to be admitted to their fine, that by the pay∣ing of their fine they may escape imprisonment, but de rig ore iuris they ought as well to be impri∣soned as fined k 1.18.

Nomomath.

I would know of you Canonolo∣gus, whether there be any penaltie in your Lawe prescribed for such offences.

Canonolog.

Yes there is a penaltie set downe* 1.19 for Clarkes, & such as haue takē holy orders, for if they do commit publique force, they are to be excōmunicated vntil they be reformed, and they may be depriued for such publique offence l 1.20.

Nonomath.

But what if the Magistrates in the* 1.21 countrie be negligent and remisse in punishing such offences, hath not your Lawe Codicgnostes prouided reformation for them.

Codicgn.

Yes, if any Iudge will not do iustice* 1.22 in the repressing and punishing of such offen∣dors, but shall either differre the punishment, or neglect to giue sentēce, or shal partially demeane himselfe in the smothering of that fault, or shall not inflict the punishment due to such offences, the said magistrate is by Lawe to bee made infa∣mous, to be depriued of his office, & to be made vncapable and vnable for any other office, and

further he is to be fined a C. li. in gold m 1.23.

Anglonomoph.

Our Law is likewise seuere a∣gainst* 1.24 such: for if the Iustices of Peace & sheriffe or vndersheriffe do record the force, and do not commit the riotors to prison, or if they commit them, and do not record the force, they shall pay euerie of them a C. li. for the statute is that they shall recorde and cōmit n 1.25, and if any riots, routs, or assemblies of people bee done against the Lawe, two Iustices of Peace at the least with the Sheriffe or vndersheriffe must goe to the place where the riot &c. is cōmitted, & they must take the offendors &c. & this is by the statute of 13. H. 4. c. 7. but notwithstanding this statute Fineux chiefe Iustice was of opinion 14. H. 7. that forso∣much as the statute is but merely in the affirma∣tiue, that therefore one Iustice of Peace may goe & take power with him, and represse the riotors &c. and he needeth not to stay for his cōpaniōs, nor for the Sheriffe, nor &c. because the statute is a beneficiall Lawe made to auoid a mischiefe which might otherwise happen if one Iustice should stay for his companiōs o 1.26, and the Sheriffe and Iustices of Peace may take with thē as many men in harnesse as are necessarie and gunnes &c. and may kill the riotors if they wil not yeeld thē∣selfes: and if the two Iustices which be nearest vnto the place, where the riot is committed, and the Sheriffe or vndersheriffe do not execute the saide Statute of 13. Henr. 4. they shall euery of them paie an hūdred poūd, as before I haue said and the other Iustices of the same countie, where

the riot is committed shall bee fined for the not repressing of the riot, if there bee any de∣fault in them p 1.27, but in such case it seemeth that the Iustices of the Peace should haue notice of the riot giuen vnto them, or els that it should be so notorious that by common intent they may take notice of it q 1.28.

Nomomath.

Wee will proceed no further in this matter, but will now passe to the title conse∣quently ensuing.

Notes

• * 1.1

  1. Diuision.
• * 1.2

  1. The descri∣ption of pu∣blike force by the Ciuill law.
• a 1.3

  L. armatos. ff. ad L Iul: de vi pub:
• * 1.4

  2. That in the matter of pu∣blike force, the Common law agreeth with the ciuill.
• * 1.5

  3. A differēce by the Com∣mon lawe be∣twixt publike force and op••n force.
• b 1.6

  11. H. 4. 16. Westminst. 1. c. 37. 4. H. 4. c. 8.
• c 1.7

  30. Assis. 50. Assis. 301.
• * 1.8

  4. The punish∣ment of pub∣like force by the Ciuil law.
• d 1.9

  L. 2. ff. de publ iudic: & l. si quis ad se fundun. C. eod. & §. item lex. I••st: eod:
• e 1.10

  §. relegati. Instit: quib: mod: ius patr•• potest. soluit.
• f 1.11

  L. si. C. Ad L. Iul. de vi pu∣bl: l. 1. & 2. in prin. ff. eod.
• * 1.12

  5. That by the Common law the Counsay∣lors and com∣mittors of force are alike punished.
• g 1.13

  17. Assis. pl. 14.
• h 1.14

  22. Assis. pl. 74.
• * 1.15

  6. What an vnlawfull as∣sembly is by the Common law. 7. What a rout is.
• * 1.16

  8. What •• ryot is.
• i 1.17

  Fitzh. Iust. de Peace. 28. Mar••. lect. 8. Crompt. Iust. de peace 53.
• k 1.18

  Crompt. Iu∣stic. de peace. 53. b.
• * 1.19

  9. The punish∣ment of the aforesaid of∣fences by the Canon law.
• l 1.20

  c••veritatis ext. de dolo & contum: &c. Inquisitionis, &c. qualiter & quando, extr. de accusat. &c. licet Heli extr. de simon. &c. Generali de elect. lib. 6.
• * 1.21

  2. Diuision.
• * 1.22

  1. The punish∣ment of the Iustice not pu∣nishing such offēces by the Ciuill law.
• m 1.23

  L. fin. C. ad leg: Iul. de vi public. vel pri∣uat.
• * 1.24

  2. That the Iustices of Peace by the Common law are punished for remiss••nes of punishing others, for the afore••aid faults.
• n 1.25

  13. H. 4. c. 7.
• o 1.26

  14. H. 7. 10. {per} Fin. Fitzh. Iust. de P. 16▪
• p 1.27

  23. Eliz. Crompt. I. P. 54.
• q 1.28

  Crompt. I. P. 54. b. Dy. 210.